Citation: Regina v BRETT [2004] NSWCCA 372
Court: NSW Court of Criminal Appeal
Date: 27 September 2004
Judge(s): Wood CJ at CL, Barr J, Hoeben J
Background
The applicant pleaded guilty on the day of trial to maliciously inflicting grievous bodily harm with intent to cause grievous bodily harm (s 33, Crimes Act 1900) and maliciously wounding a second person (s 35, Crimes Act 1900). The original charge of causing grievous bodily harm with intent to murder was not pressed. Both offences arose from a single violent incident on 11 October 2002.
On that night, the applicant entered the home of his former de facto partner without her consent, in breach of an Apprehended Violence Order. Armed with a large filleting knife, he stabbed her multiple times in the chest, abdomen, wrist and head, causing serious internal injuries including a collapsed lung and damage to the colon. He also kicked her in the head. A second victim, who had intervened during the attack, was struck with the knife to the back of the head. The attack on the primary victim occurred while she was making a triple-zero call, and a recording captured the applicant making numerous threatening statements.
In the District Court, the applicant was sentenced to 10 years imprisonment with a non-parole period of 7 years for the principal offence, and a concurrent fixed term of 4 years for the wounding offence. He appeared in person before the Court of Criminal Appeal seeking leave to appeal on grounds of severity.
Legal Issues
- Whether the original sentence for maliciously inflicting grievous bodily harm with intent was manifestly excessive
- Whether the applicant suffered from inadequate legal representation at the sentencing hearing, such that relevant mitigating material was not placed before the sentencing judge
- Whether any error in the sentencing process warranted appellate intervention and resentencing
Decision
The Court granted leave to appeal and allowed the appeal in relation to the principal offence. Wood CJ at CL identified that while the offending was serious and the sentencing judge correctly weighed a range of aggravating factors, some reduction to both the head sentence and the non-parole period was warranted.
The Court acknowledged the substantial weight of the aggravating circumstances. These included the serious and lasting injuries inflicted on the primary victim (including Post Traumatic Stress Disorder and ongoing physical harm), the commission of the offences at night and in the victim's home, the applicant's prior criminal record including a prior conviction for grievous bodily harm, the breach of an existing Apprehended Violence Order, and the presence of Form 1 matters (contravening an AVO and possessing a prohibited weapon without a permit).
In the applicant's favour, the Court took into account his guilty plea and the discount to which that entitled him, as well as his expressions of remorse and the personal circumstances raised through his own evidence and that of family members. The Court also noted that the imposition of wholly concurrent sentences for two offences involving two victims was already favourable to the applicant, and that the sentencing judge would have been within rights to impose partially accumulative terms.
The Court declined to interfere with the sentence for the malicious wounding of the second victim, finding no error in that component. Barr J and Hoeben J agreed with the orders proposed by Wood CJ at CL.
Orders Made
- Leave to appeal granted
- Appeal allowed
- Sentence on the count of maliciously inflicting grievous bodily harm with intent quashed
- In lieu: a term of imprisonment of 9 years, commencing 12 October 2002, with a non-parole period of 6 years and 3 months, expiring 11 January 2009 (earliest parole eligibility date: 11 January 2009)
Key Takeaways
- The Court of Criminal Appeal reduced a 10-year head sentence (with 7-year non-parole period) to 9 years (with a 6 years and 3 months non-parole period), finding the original sentence was open to some reduction despite the severity of the offending.
- A prior conviction for the same category of offence, combined with commission of the current offence in breach of an AVO, attracted particular weight in favour of retribution, personal deterrence and community protection.
- Concurrent sentencing across two counts involving two separate victims was treated as a concession to the applicant; the court noted that partial accumulation would have been fully available and justified under the totality principle.
- Where Form 1 matters (including AVO contravention and prohibited weapons possession) are taken into account, those matters necessitate the imposition of additional imprisonment as a matter of principle.
- A guilty plea tendered on the day of trial, while still attracting a discount, carries less weight than an early plea, a distinction that informs the quantum of the sentence reduction applied.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 33, 35
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Listening Devices Act 1984 (NSW)
Cases
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 137 A Crim R 180
- Pearce v The Queen (1998) 194 CLR 610
- R v Birks (1990) 19 NSWLR 677
- R v Cooney [2004] NSWCCA 255
- R v Cotter [2003] NSWCCA 273
- R v Doorey [2000] NSWCCA 456
- R v Hayes [2001] NSWCCA 358
- R v Johnson [2004] NSWCCA 76
- R v KM and others [2004] NSWCCA 65
- R v Lardner NSWCCA, 10 September 1998
- R v Pearson (2002) 137 A Crim R 419
- R v Rushby [1977] 1 NSWLR 594
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Toro-Martinez [2000] NSWCCA 216
- R v Totten [2003] NSWCCA 207